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ELRCStruck OutCause No 109 of 2024· [2025] KEELRC 1262 (KLR)

Cellincom Communications Limited v Carlcare Services Limited (Cause 109 of 2024) [2025] KEELRC 1262 (KLR)

Employment and Labour Relations Court
30 April 2025
1,334 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant, a Kenyan limited liability company, sued the Respondent, apparently a Hong Kong company operating in Kenya, alleging premature and unreasoned termination of an After Service Agreement executed in late 2022/early 2023 for the period 1st January to 31st December 2023. Under the agreement the Claimant provided after sales services for telecommunication products (including Infinix, Itel and Tecno handsets), deposited Ksh. 500,000.00 for spare parts, and claimed a service charge by monthly invoicing payable within sixty days. The agreement chose Hong Kong law and the Hong Kong International Arbitration Centre as the dispute forum. The Claimant sought reliefs for breach of the agreement, describing the relationship as employer-employee. The Respondent filed a Statement of Defense describing the arrangement as a purely commercial agreement, together with a Notice of Preliminary Objection challenging the court's jurisdiction. The court addressed the objection in priority. Applying the Lillian S principle, it held that its jurisdiction under article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Court Act is confined to employment and labour matters. Since the Claimant was remunerated by service charge upon invoicing rather than wages or salary, and was required to source and pay deposits for spare parts, the relationship was commercial, not employment. The court also noted the contractual choice of Hong Kong law and arbitration. It declined the Claimant's request to transfer the cause to the High Court, holding that a suit filed in the wrong court is a nullity and that article 159 cannot cure a jurisdictional objection. The suit was struck out with costs to the Respondent on 30th April 2025.

Key legal issues

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01

Whether the dispute falls within the jurisdiction of the Employment and Labour Relations Court

Holding

The court lacks jurisdiction because the relationship between the parties is commercial, not employment

Reasoning

The court's jurisdiction under article 162(2) and section 12 of the ELRC Act is confined to employment and labour relations matters. Under the Employment Act, an employee is one employed for wages or salary. The agreement provided for payment of service charge upon invoicing, sourcing of spare parts from the Respondent and payment of a deposit — features inconsistent with employment and consistent with a commercial contract.

02

Whether the court could transfer the suit to the High Court or invoke article 159 to cure the jurisdictional defect

Holding

No — a court without jurisdiction cannot transfer a matter; a suit filed in the wrong court is a nullity and article 159 does not apply to jurisdictional objections

Reasoning

If jurisdiction is absent, the court can do nothing in the matter, including ordering transfer. Following Equity Bank v Bruce Mutie Mutuku and Private Development Co. Ltd v Rebecca Ngonyo, a suit filed in the wrong court is a nullity. Article 159 addresses procedural technicalities, but a jurisdictional objection is not a mere procedural technicality.

p. 3
03

Effect of the parties' choice of Hong Kong law and Hong Kong International Arbitration Centre as the dispute resolution forum

Holding

The Claimant cannot overlook the contractual clauses choosing Hong Kong law and arbitration and invoke Kenyan law before this court

Reasoning

The parties executed an After Service Agreement designating Hong Kong law as governing law and the Hong Kong International Arbitration Centre as the seat for dispute resolution. Having agreed to those clauses, the Claimant is not entitled to ignore them and present the dispute to this court under Kenyan law.

p. 3

Legal principles established

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  • A court without jurisdiction must down its tools immediately
  • For an employment relation to exist, services must be rendered in return for a salary or wage; remuneration by service charge upon invoicing indicates a commercial relationship
  • A suit filed in a court without jurisdiction is a nullity and there is nothing to transfer
  • Article 159 of the Constitution cannot be invoked to circumvent a jurisdictional objection, which is not a mere procedural technicality

Court orders

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  1. 1.The suit is struck out
  2. 2.Costs to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)
  • Constitution of KenyaArticle 159
  • Employment and Labour Relations Court ActSection 12
  • Employment ActDefinition of 'employee'

Cases cited (3)

  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Equity Bank Limited v Bruce Mutie Mutuku ta Diani Tour & Travel
    [2016] eKLR
  • Private Development Co. Ltd v Rebecca Ngonyo & another
    [2006] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya read with section 12 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Cellincom Communications Limited v Carlcare Services Limited (Cause 109 of 2024) [2025] KEELRC 1262 (KLR)", Case Analysis (2025). Cause No 109 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1262/eng@2025-04-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.